Post-Conviction Relief for Immigrants

(B)  Improper Inflammatory Argument.  Due process may also be violated if the prosecution makes improper or inflammatory argument at the time of sentence.[380]  The prosecution has both an ethical and constitutional duty to ensure that its arguments regarding sentence do not lead to a sentence based on prejudice or passion.  Due process can be violated by inflammatory remarks by the prosecutor, especially before a sentencing jury.[381]  The prosecution must also not make disparaging remarks regarding racial, ethnic or religious groups.[382]

[380] Horner v. State of Florida, 312 F.Supp. 1292 (M.D.Fla. 1967) (sentence infected by prosecutorial “venom”); United States v. Fogg, 652 F.2d 551 (5th Cir. 1981); United States v. Perri, 513 F.2d 572 (9th Cir. 1975) (improper reference to defendant's connection with organized crime without furnishing basis on which to rebut the allegation); United States v. Cavazos, 530 F.2d 4 (5th Cir. 1976) (prosecution argument that all drug offenders are repeat offenders).

[381] See ABA Standards Relating to Sentencing Alternatives and Procedures, § 5.3(b) (1968); Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985).

[382] Cf. United States v. Cabrera, 222 F.3d 590 (9th Cir. 2000) (due process violated where investigating officer made repeated generalizations based on defendants’ national origin when testifying; such comments equal plain error as irrelevant references about Cuban community prejudiced defendant in eyes of jury); Bains v. Cambra, 204 F.3d 964, 974 (9th Cir. 2000) (the prosecutor's improper closing argument, which invited the jury to consider prejudices and stereotypes concerning the Sikhs, violated petitioner's constitutional rights; a defendant's due process and equal protection rights are implicated under clearly established federal law where prosecution argument relates to race, ethnicity or religious discrimination); see also McCleskey v. Kemp, 481 U.S. 279, 309 n.30 (1987) (noting that “[t]he Constitution prohibits racially biased prosecutorial arguments”).